STATE OF NEW JERSEY-TOWNSHIP OF LOGAN v. TYRONE WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2349-04T12349-04T1

STATE OF NEW JERSEY-TOWNSHIP

OF LOGAN,

Plaintiff-Respondent,

v.

TYRONE WILLIAMS

Defendant,

and

SAFETY NATIONAL CASUALTY

CORPORATION,

Defendant-Appellant.

_________________________________

 

Argued January 9, 2006 - Decided February 7, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. W2002-000164.

Samuel L. Silver argued the cause for appellant,

Safety National Casualty Corporation.

John A. Moustakas argued the cause for respondent,

State of New Jersey-Township of Logan (Becker &

Duffield, attorneys; Mr. Moustakas, on the brief).

PER CURIAM

This is a bail forfeiture appeal in which the surety appeals from an order, following the entry of default judgment of forfeiture against it, remitting a portion of the forfeited bail asserted by the surety to have been insufficient under the circumstances. We affirm.

The facts may be briefly recited. Safety National Casualty Corporation (Surety) posted a $25,000 bail bond to secure the release of a criminal defendant, Tyrone Williams, who was charged with a violation of N.J.S.A. 2C:14-2 on June 20, 2003. The charge was downgraded and the matter subsequently remanded to the municipal court, where the defendant failed to appear as scheduled on July 16, 2003. Consequently, the surety received a notice of bail bond forfeiture issued on July 18, 2003, and a default judgment of forfeiture followed on March 12, 2004.

In the meantime, defendant had been arrested by police on an outstanding bench warrant, and a new recognizance had been posted by a private individual in the form of a cash bond on December 4, 2003, with a new court date of January 7, 2004. The defendant again failed to appear, was subsequently rearrested, and released when bail was posted on March 12, 2004. When defendant yet again failed to appear on the newly scheduled court date of April 7, 2004, he was rearrested and another bond issued on May 14, 2004, with a court date scheduled for June 2, 2004.

As a result of the defendant's warrant execution and the posting of a new, cash recognizance, the surety moved to vacate the forfeiture judgment, exonerate the surety, and discharge the bond. The motion was returnable in municipal court on June 2, 2004, the same day the defendant appeared and had the underlying matter disposed of by plea and the imposition of fines. Thereafter, the court denied the surety's motion, reasoning:

And I have absolutely nothing from the bonding company to show me that it did anything at all to either monitor the defendant after the bond was posted . . . or to locate and ensure his return, subsequent to the forfeiture. And without that, I just don't think there's sufficient evidence to support your motion to reinstate the bail.

. . . .

So, I'm going to deny the motion.

On de novo appeal, the Law Division entered a judgment against the surety in the amount of eighty percent ($20,000) of the forfeiture, concluding:

However, I find that of those seven factors, there are only two that the Court can comment on as far as Safety National Casualty is concerned. One is the corporate status, and I will grant that that factor has been met; that this was a business relationship between Safety National and Tyrone Williams, and the efforts to locate. The efforts to locate in this matter according to the record is that Safety National called the Court. The Court was here. That's not an effort to locate the defendant.

But even assuming that they kept calling the Court to see whether the State had picked him up, that's a minimal-at-best effort to ensure that the case continues. Based on that, and based on my review of the factors in this matter, I do find that there is a need to allow Safety National some percentage, but that percentage that I am going to order in this matter is 20 percent; 20 percent of the $25,000 can be returned to Safety National and 80 percent will remain with the State as a result of them fostering their resources on those three occasions.

This appeal by the surety follows.

Rule 3:26-6(a) provides that upon a breach of a condition of bail, the court sua sponte shall declare a forfeiture, and absent an objection by the surety seeking to set the forfeiture aside, a judgment of forfeiture shall be entered within 75 days after the declaration of forfeiture. Paragraph (b) permits the court to "direct that an order of forfeiture . . . be set aside . . . if its enforcement is not required in the interest of justice upon such conditions as it imposes." R. 3:26-6(b). And paragraph (c) further authorizes the court, after judgment is entered, to "remit [the bail to the surety] in whole or in part in the interest of justice." R. 3:26-6(c). "The decision to remit bail and the amount of remission are matters within the sound discretion of the trial court to be exercised in the public interest." State v. Harmon, 361 N.J. Super. 250, 254 (App. Div. 2003); see also State v. Peace, 63 N.J. 127, 129 (1973); State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003).

The exercise of that discretion must, however, be informed by the standards articulated by the courts in State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), and again in State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000), and must, moreover, be consistent with the policy concerns we identified in de la Hoya, 359 N.J. Super. at 199. Paramount among them is the necessity to provide a reasonable incentive to the surety to attempt the recapture of the non-appearing defendant and to assure that the onus placed on commercial sureties is not so great as to risk the impairment of a defendant's realistic right to post pretrial bail.

[Harmon, supra, 361 N.J. Super. at 254.]

The primary consideration among the Hyers factors "is whether the surety has made reasonable efforts under the circumstances to effect the recapture of the fugitive defendant." Id. at 255. See also State v. Harris, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 6); State v. Dillard, 361 N.J. Super. 184, 187-88 (App. Div. 2003); Mercado, supra, 329 N.J. Super. at 271. Also, "the surety's supervision of the defendant while he is released on bail" is also particularly significant. Harmon, supra, 361 N.J. Super. at 255; Dillard, supra, 361 N.J. Super. at 187-88.

The other Hyers factors include the corporate status of the surety, the length of time during which the defendant is a fugitive, the prejudice to the State and the expenses incurred by it resulting from the fugitive's non-appearance, recapture, and enforcement of the forfeiture, and whether reimbursement of the State's expenses will adequately satisfy the interests of justice. Hyers, supra, 122 N.J. Super. at 180. The detriment to the State also includes, as held by Peace, supra, 63 N.J. at 129, an unquantified "intangible element of injury to the public interest in almost any case where a defendant deliberately fails to make an appearance in a criminal case."

[Harmon, supra, 361 N.J. Super. at 255.]

In applying these standards to the facts before us, we are satisfied that the twenty percent partial remission to the surety strikes a fair balance between the competing policy concerns and does not constitute an abuse of the court's discretion. The defendant here initially remained a fugitive for about six months until his arrest on December 4, 2003, and thereafter absented himself from two more scheduled court appearances until his subsequent arrest on May 14, 2004, and ultimate presence before the municipal court on June 2, 2004. The record demonstrates that apart from advising the defendant of his responsibilities during release on bail, the surety made no meaningful effort to supervise and monitor the defendant during this entire period. Moreover, is there no indication that the surety even maintains a monitoring policy requiring regular reporting by the defendant, much less evidence of an attempt by the surety to ensure that defendant complied with the bail or bail contract conditions.

Equally perfunctory were any efforts by the surety to locate, apprehend and return the defendant to custody after receiving notice of forfeiture. There is no proof the surety conducted surveillance or other investigations, or otherwise expended significant costs to recapture the fugitive defendant, or played any role whatsoever in his apprehension. Rather, it relied exclusively on telephone inquiries of the municipal court to ascertain the status of the matter and if defendant had been rearrested.

Seven of the consolidated sixteen bail forfeiture appeals in Harmon involved analogous circumstances as here. 361 N.J. Super. at 257. In each of those matters, we determined that, where the surety failed to supervise and monitor the criminal defendant following release on bail, the surety's subsequent efforts to effectuate the recapture of the fugitive were "minimal," and the time lapse between non-appearance and recapture was not inordinately long, a twenty percent remission to the surety is fair "to the competing interests of the surety, the indemnitor who has posted collateral, defendants' general interest in the availability of commercial bail, and the interests of the State." Ibid.

We conclude likewise here. Based on all the circumstances, including the surety's corporate status, its lack of meaningful supervision and monitoring of the defendant while on release, the failure to discharge its primary obligation to recapture the fugitive, and the intangible injury to the State due to the length of time the defendant remained at large, and his absence from court when the prosecution was prepared to proceed, we are satisfied that the partial remission of only twenty percent is appropriate and not an abuse of discretion.

 
Affirmed.

(continued)

(continued)

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A-2349-04T1

February 7, 2006